Solicitor Briefs

The court dismissed, per curiam, union petitions for
review of two Authority decisions reviewing arbitration awards, on the ground
that the court lacked jurisdiction under section 7123 of the Statute.
In the cases involved, the Authority set aside arbitrators' awards granting
severance pay. The court concluded that it lacked jurisdiction under section
7123, and determined that other jurisdictional grounds, such as that
provided by the Supreme Court's Leedom v. Kyne decision, did not
apply.

The D.C. Circuit denied a union's petition for review of an Authority ULP
decision in an information case arising under section
7114(b)(4) of the Statute. The complaint alleged that the
Agency improperly refused to provide documents requested by the union in
connection with a pending grievance. Characterizing as "conclusory" the
union's claim that it "needed the information to prepare for arbitration of
its previously filed grievance," the Authority found that the union failed to
articulate a particularized need for the documents. The court agreed,
rejecting the union's claim that the connection between the information the
union sought and the grievance was "self-evident."

The union seeks review of an Authority decision finding that the agency did
not commit ULPs for failing to provide the union with requested information
under § 7114(b)(4) of the Statute because the union did not meet its burden of
articulating and establishing a particularized need for the
information.

The Ninth Circuit denied the union's petition for review of an Authority
decision that the Agency did not commit a ULP when it refused to bargain over
a matter covered by section 7106(b)(1) of the Statute. The
court affirmed the Authority's determination that section 2(d) of Executive
Order 12871, which provides that agencies "shall . . . negotiate over the
subjects set forth in 5 U.S.C. 7106(b)," constitutes a
direction to agency personnel rather than an election to bargain under section
7106(b)(1).

The D.C. Circuit denied the union's petition for review of an Authority
decision that the union's proposal regarding performance ratings is outside
the duty to bargain. The court found reasonable and deferred to the
Authority's explanation of why performance rating levels are not a "method" or
"means" of performing work.

The union seeks review of an Authority ULP decision finding that certain
statements of an agency management official, and the agency's failure to
promote an employee who had engaged in protected activities, did not violate
the Statute.

The Fifth Circuit, per curiam, has affirmed the decision of the
District Court for the Western District of Texas dismissing the union's suit
for lack of subject matter jurisdiction. The union had sought reversal of an
Authority arbitration decision.

The Third Circuit denied the union’s petition for review. The Authority’s
decision held nonnegotiable a union proposal requiring the agency to use its
Army Working Capital Fund (AWCF) to reimburse employees for personal losses
such as forfeited airline tickets, hotel deposits, and the like, resulting
from the cancellation of previously approved leave. The union argued that
because the AWCF was a revolving fund, the money collected was at least in
part nonappropriated funds that could be used to reimburse
employees.Rejecting this argument, the court agreed
with the Authority’s reasoning that the AWCF should be treated as an “on-going
or continuing appropriation.”However, the court disagreed
with the Authority’s blanket generalization that revolving funds are always
appropriations since the test depends on “whether the particular revolving
fund is financed-or is permitted to be financed-by appropriated
funds.”The court therefore examined the AWCF to see
whether Congress had clearly expressed its intent to separate the agency from
general federal revenues.The court held in this regard
that Congress intended that the AWCF was to be supported by appropriated
funds.

The D.C.
Circuit dismissed the
union's petition for review for lack of jurisdiction. The union
seeks review of an Authority decision in an arbitration case finding that the
amount of attorney fees awarded by an arbitrator was not reasonable, and
reducing those fees for failure to exercise billing judgment.

The First Circuit affirmed the Authority's final decision and order finding
that in an unfair labor practice proceeding, the Authority lacked jurisdiction
over National Guard technician terminations. The court agreed with the
Authority "that the plain language of section 709(f)(4) of the
Technicians Act categorically precludes review of technician terminations
under the Labor-Management Act."

The D.C. Circuit denied, per curiam, the union petition for
review of an Authority decision. The Authority dismissed the union's
complaint finding that the agency did not commit a ULP by failing to comply
with an arbitration award by continuing to vacate correctional officer posts.
The court concluded that the Authority reasonably determined based on record
evidence that many of the posts remained unfilled for good cause.

The union seeks review of an Authority decision dismissing a ULP complaint
alleging that the agency committed a ULP by changing its policy on the type of
personally owned handguns employees could use, reducing the number of hours of
remedial firearms training provided to employees, and repudiating a Memorandum
of Understanding.

The D.C. Circuit denied the union’s petition for review. The union sought
review of an Authority decision finding nonnegotiable a proposal requiring the
agency to allow a union observer at performance-based interviews conducted to
fill unit positions. The D.C. Circuit agreed with the Authority that the
proposal affected management’s right to "make selections for appointments"
under § 7106(a)(2)(c) of the Statute.

The D.C. Cir. denied the union's petition for review. The union
sought review of an Authority decision finding that the agency did not commit
a ULP by refusing to execute a collective bargaining agreement reached between
the parties but disapproved by OMB.

The court dismissed the Guard's petition for review for lack of
jurisdiction because the appeal had not been authorized by the Department of
Justice nor approved by the Solicitor General. The court left pending the
Authority's cross-application for enforcement.

The D.C.
Circuit denied the union’s petition for review.The union
sought review of an Authority decision finding that the agency did not commit
a ULP by failing to bargain with the union over the reduction in the number of
reserved parking spaces because the impact on employees was de
minimis.

The D.C. Circuit affirmed the decision of the United States District Court
for the District of Columbia holding that with certain exceptions not present
here, district courts lack jurisdiction to review Authority appropriate
unit determinations. The district court dismissed the union's complaint
seeking review of the Authority's decision denying the union's petition to
consolidate various bargaining units of National Guard civilian technicians
into a single unit. The district court held that it lacked jurisdiction
to review the case under § 7123 of the Statute. The court of appeals
agreed with the district court when it ruled § 7123 of the Statute, which
"precludes judicial review" of appropriate unit determinations, applies to
district courts.

The court dismissed the union's petition for review of an Authority
decision finding nonnegotiable a proposal requiring the agency to convert
certain full-time military positions to positions that could be filled by
civilian technicians or other types of personnel. The court agreed with
the Authority that the Guard's regulation, ANGI 36-101, does not require the
Guard to hire civilian technicians.

The D.C. Circuit denied the union’s petition for review of the Authority’s denial of a request for reconsideration of its decision dismissing a negotiability appeal. This case, involving a bargaining proposal that would require the agency to reimburse employees for out-of-pocket expenses incurred when the agency cancels previously approved leave, was first decided by the Authority in 2000 (56 F.L.R.A. 493, reconsideration denied 56 F.L.R.A. 807), where the Authority held that the proposal was inconsistent with the Travel Expenses Act. That decision was reversed and remanded by the D.C. Circuit (ACT v. FLRA, 269 F.3d 1112 (D.C. Cir. 2001)). On remand (58 F.L.R.A. 318, reconsideration denied 59 F.L.R.A. 2 (2003), the Authority again found the proposal nonnegotiable, as inconsistent with federal appropriations law. Again the D.C. Circuit reversed and remanded (ACT v. FLRA, 370 F.3d 1214 (2004)). On the second remand, the Authority specifically addressed the questions posed by the Court and, once more, concluded that the proposal was outside the obligation to bargain. Specifically, the Authority found that: 1) the reimbursements required by the provision are not authorized as “official business” of the agency; 2) that the Statute does not create an independent basis for authorizing the reimbursements; 3) this case is distinguishable from cases finding proposals for a union’s use of government telephones or for travel expenses for negotiations negotiable; 4) reasons of staffing, morale, recruitment and retention do not authorize the reimbursements; and 5) the proposal does not constitute an appropriate arrangement under § 7106(b)(3). The court found reasonable the Authority’s determination that the proposal was not an appropriate arrangement and opted not to address the issue of whether the Statute implicitly authorizes expenditures to implement contract provisions that are negotiable under the Statute.

The D.C. Circuit denied the union's petition for review of an Authority
decision finding a proposal nonnegotiable because the proposal concerns a
military aspect of technician employment. The union's proposal would have
governed how the National Guard informs dual-status technicians of their
eligibility to volunteer for active duty by taking leave from their civilian
posts pursuant to 5 U.S.C. § 6323(d). Section 6323(d) is a
special pay status entitling technicians to only their civilian salaries --
and not military pay -- while on leave. The Court gave the FLRA's
interpretation "judicial respect" and found that the proposal threatens to
interfere with the National Guard's discretion to call technicians into action
as it sees fit, pursuant to 10 U.S.C. § 12301. Thus, the court found
that the proposal was inconsistent with 10 U.S.C. § 976, which
prohibits bargaining over the terms and conditions of military
service.

The Ninth Circuit denied the union's petition for review of an Authority
decision dismissing a ULP complaint against an agency. The Authority had ruled
that the agency's refusal to implement a Federal Service Impasses
Panel-imposed provision for official time for lobbying did not violate the
Statute because the provision was inconsistent with a prohibition in the
agency's Appropriations Act. The court agreed with the Authority's
interpretation of the Appropriations Act and affirmed the Authority's holding
that the provision was inconsistent with federal law. Therefore, the court
agreed, the agency was not required to include the provision in the collective
bargaining agreement.

The D.C. Circuit ruled that it lacked jurisdiction over two unions'
petition for review of an Authority negotiability decision because the
petition was prematurely filed. The court agreed with the Authority that the
unions' pending request for administrative reconsideration rendered the
underlying Authority action nonfinal. The court further agreed that the
Authority's subsequent issuance of a final order in the case, denying the
request for reconsideration, did not cure the petition's prematurity.

The D.C. Circuit denied the union's petition for review of an Authority
decision finding nonnegotiable, in part, a provision requiring the agency to
grant official time to union officials for lobbying Congress on pending or
desired legislation. The court agreed with the Authority that the
provision was contrary to law and therefore nonnegotiable. Thus, the
court held that § 8012 of the Department of Defense Appropriations Act, Pub.
L. No. 105-262, 112 Stat. 2279, 2299 (1998), prohibits the "provision because
. . . official time may only be granted to the extent that it is consistent
with all 'applicable laws and regulations.'" 269 F.3d at1122 (quoting
NFFE Local 2015, 41 F.L.R.A. 1158, 1185 (1991)).

The D.C. Circuit denied, per
curiam, the union’s petition seeking
review of the Authority decision on remand finding nonnegotiable a
proposal requiring the agency, among other things, to negotiate over the
assignment of military training duties.

The D.C. Circuit granted the union's petition for review. The
Authority found nonnegotiable the union's proposal relating to how management
officials will address union officials and other unit employees engaged in
labor-management relations matter.

The D.C.
Circuit granted the union petition for review, vacated and remanded the
Authority=s
decision.The union sought review of an Authority decision
finding nonnegotiable a proposal requiring the agency, among other things, to
negotiate over the assignment of military training duties to National Guard
technicians who serve as both civilian employees and military members of the
Guard.Since the proposalconcerned
training duties assigned to technicians while serving in their civilian
status, not while on full-time Guard duty status, the court found that
bargaining on it did violate the prohibitions set forth in 10 U.S.C.
' 976.Based on the statute=s text, its
legislative history, andestablished cannons of statutory
construction, the court agreed with the union, that ' 976's prohibition did
not limit bargaining over terms or conditions of National Guard service in all
circumstances, but only when bargaining on those matters relates to members
who are serving on full-time Guard duty.

The D.C. Circuit denied an individual's petition for review of an Authority
decision dismissing a ULP complaint alleging that he had been terminated in
retaliation for exercising rights protected by the Statute. Agreeing with the
Authority, the court held that Power's termination resulted not from
anti-union animus but from his insubordinate conduct. The court also found
that Power's claim of impermissible bias on the part of an Authority member
was both meritless and precluded under section 7123(c).

The D.C. Circuit granted the agency's petition for review, reversed the
Authority's decision and order, and remanded the case with direction to
dismiss the unfair labor practice (ULP) complaint. The Authority had held that
the agency committed a ULP by suspending a union representative for activity
that was not “flagrant misconduct” and was therefore protected by § 7116(a)(1)
and (2). The court found, instead, that the conduct was not protected activity
under the federal labor statute.

The Ninth Circuit reversed an Authority decision dismissing an individual's
unit clarification petition filed pursuant to section 7111 of the
Statute. Citing 5 C.F.R. § 2422.2(c), the Authority had determined that only
agencies and unions could file unit clarification petitions and that,
therefore, the individual lacked standing to file such a petition. Ruling that
it had jurisdiction under section 7123 of the Statute to review
Authority decisions on petitions filed under section 7111, the court
disagreed and reversed the Authority's determination.

The First Circuit granted the Authority's petition for enforcement of an
unexcepted-to-ALJ decision finding that the agency violated the Statute by
repudiating an MOU. The court enforced the Authority's order even though the
agency agreed, on the eve of oral argument, to comply. The court stated in
this regard that "judicial enforcement will serve as an effective reminder to
the respondent of its continuing obligation fully and seasonably to effectuate
the terms of the Authority's remedial order."

On remand from the Supreme Court (119 S. Ct. 2387 (1999)), the Second
Circuit enforced the Authority's order in the above-referenced cases. The
Authority found that the agency committed ULPs when it denied an exclusive
representative and certain unit employees their section 7114(a)(2)(B)
representation rights during Office of the Inspector General (OIG)
investigations. The Supreme Court had vacated an earlier Second Circuit
decision that denied the Authority's application for enforcement, instructing
the court to reconsider its decision in light of NASA v. FLRA, 527 U.S. 229
(1999). In NASA v. FLRA, the Supreme Court affirmed the
Authority's decision that an OIG investigator is a "representative of the
agency" when examining a bargaining unit employee who reasonably fears that
discipline might result from the examination. The Second Circuit reconsidered
its earlier position and granted the Authority's application for
enforcement.

The court granted, in part, the Authority's application for enforcement of
its order, set aside a portion of the Authority's order, and remanded the
matter for further proceedings. The FLRA sought enforcement of a
decision finding an ULP for the agency's refusal to provide the union with
certain documents relating to the discipline of a unit employee.

The D.C. Circuit denied the union's petition for review of an Authority
decision dismissing a ULP complaint. The court found that the union had failed
to raise to the Authority the arguments that it was making to the court and
that, therefore, the union's objections were barred by section
7123(c) of the Statute, which prohibits a court from
considering objections not first raised to the Authority unless the failure to
do so is excused by "extraordinary circumstances." The court rejected the
union's argument that its failure should be excused because there had been
simultaneous briefing in the case and the union could not anticipate the
agency's arguments. The court noted that the union did not seek to file a
reply brief with the Authority nor did it request reconsideration of the
Authority's decision.

The First Circuit affirmed the Authority's determination that an agency's
refusal to bargain over a proposal for official time for lobbying did not
violate the Statute. The Authority had ruled that the proposal was
inconsistent with a prohibition in the agency's Appropriations Act. The court
agreed with the Authority's interpretation of the Appropriations Act and
affirmed the Authority's holding that the proposal was inconsistent with
federal law and therefore not within the agency's duty to bargain.

The Ninth Circuit granted the Agency's petition for review of an Authority
decision holding that the Agency violated section
7114(a)(2)(A) by not providing the union with notice and
opportunity to be represented at a "formal discussion." The Authority had
determined that a meeting in which a bargaining unit employee and the Agency
settled an EEO complaint was a "formal discussion" within the meaning of
section 7114(a)(2)(A), and, therefore, the union had the
right to be represented. The 9th Circuit disagreed, noting that a "formal
discussion" must involve a "grievance" and holding that a complaint brought
pursuant to EEOC procedures was not a "grievance" within the meaning of
section 7114(a)(2)(A).

The Fifth Circuit affirmed the decision of the United States Southern
District Court for Mississippi holding that the Mississippi Army National
Guard is subject to the Authority's jurisdiction. The Mississippi State
Guard appealed a district court decision dismissing their complaint. In
the district court proceeding, the Guard sought to enjoin an election directed
by the Authority in a unit of dual-status technicians. The district
court agreed with the Authority's conclusion that while the Mississippi
National Guard is a state agency, it is also a federal agency for purposes of
the Statute. In addition, the court held that the Adjutant General,
while serving at the state level, is responsible for personnel actions of
guard technicians. Thus, the Adjutant General acts in a federal capacity
as an employer.

The Supreme Court affirmed the Authority's (50 FLRA 601
(1995)) and the Eleventh Circuit's decisions (FLRA v National
Aeronautics and Space Administration, Washington, D.C., 120 F.3d
1208 (11th Cir. 1997)) that an Office of the Inspector General
(OIG) investigator is a "representative of the agency" when examining a
bargaining unit employee who reasonably fears that discipline might result
from the examination. Relying on the language of the Statute and the
Authority's interpretation in 50 FLRA 601, the court rejected NASA's argument
that "representative" is limited to the entity that collectively bargains with
the union. The court also held that the Authority's decision is consistent
with the Inspector General Act, which provides that an agency's OIG
investigators are "employed by, act on behalf of, and operate for the benefit
of" that agency.

The union seeks review of an Authority decision denying the union's
application for review of a Regional Director determination that held, among
others things, that the bargaining unit's Agriculture Specialists are not
professional employees within the meaning of the Statute. The union has also
moved, both before the Authority and the court, for a stay of the Authority's
decision pending the court's review.

The Eleventh Circuit denied, per
curiam, the union’s petition seeking review
of an Authority decision adopting an ALJ determination.The
ALJ determined that the General Counsel was entitled to summary judgment when
the union failed to answer a ULP complaint.The complaint
alleged that the union violated the duty of fair representation by failing to
poll all bargaining unit members in determining a watch schedule.Regarding the Authority’s refusal to consider several claims that the
union had asserted for the first time in its exceptions to the ALJ’s
determination, the court explored whether manifest injustice would result if
it honored the invocation of this procedural bar.Based on
the exceedingly limited scope of the cease and desist order issued against the
union, the court concluded there was no basis for overturning the Authority’s
procedural bar ruling.

The D.C. Circuit granted the union's petition for review in part and denied
the petition in part of an Authority decision dismissing ULP charges against
the agency for refusing to bargain over patient parking spaces at the
agency.

National Federation of Federal Employees v. U.S. Department of the
Interior,526 U.S. 86
(1999).

The Supreme Court remanded the 4th Circuit's decision in United States
Dep't of the Interior v. FLRA, 132 F.3d 157 (4th
Cir. 1997), in which the 4th Circuit held that the Agency had no
obligation to bargain endterm over a collective bargaining agreement provision
to permit negotiations over Union-initiated midterm proposals. Regarding the
issue of midterm bargaining, the Supreme Court concluded that the Authority's
interpretation of the Statute is entitled to deference and vacated the Fourth
Circuit's decision that an agency is not obligated to bargain over a proposal,
offered during term negotiations, that would require it to engage in
union-initiated midterm bargaining. The court rejected the Fourth Circuit's
premise that the Statute imposes no obligation on Federal agencies to bargain
midterm and held that the Statute was "sufficiently ambiguous" as to require
deference to the Authority's interpretation. The court stated that it was up
to the Authority to determine "whether, when, where, and what sort of midterm
bargaining is required." The court remanded the case to the Fourth Circuit,
which, in turn, remanded the case to the Authority for proceedings consistent
with the opinion of the Supreme Court.

The D.C. Circuit granted the union's petition for review and remanded the
case to the Authority for further proceedings. The Authority found that
the agency did not commit a ULP by closing the School Age Services child care
program without completing bargaining since the Union waived its right to
bargain on the closure when it did not submit a timely bargaining request in
accordance with the parties’ agreement.

The D.C. Circuit granted the union’s petition for review and remanded
the case to the Authority.In the decision under review,
the Authority ruled that two union proposals calling for the disclosure of
certain documents interfered with the agency’s statutory right to assign work
because the agency would have to assign personnel to review a large number of
documents sought by the union.The court concluded the
decision was contrary to longstanding Authority precedent making it clear that
union proposals interfere with the right to assign work only when they specify
which employees are to perform the task at issue, which neither proposal in
this case did.In these circumstances, the court granted
the union’s petition for review and remanded the case for issuance of a
bargaining order.

The D.C. Circuit granted in part and denied in part the union’s petition for review. While the court agreed that the agency has no obligation to negotiate over two of the union’s proposals, it remanded a third proposal to the Authority to determine whether it represents an appropriate
arrangement.

The D.C. Circuit denied the union’s petition
seeking review of an Authority decision setting aside an arbitrator’s
award.The award found that the agency acted improperly by
failing to negotiate with the union prior to implementing changes in its
National Inspectional Assignment Policy (NIAP).The court
upheld the Authority’s conclusion that the agency’s revision to the NIAP
constituted the exercise of management rights.Finally, the
court found that the Authority’s decision did not misapply its precedent

The Ninth Circuit denied the union’s petition
seeking review of an Authority decision that affirmed an agency’s disapproval
of a collective bargaining agreement provision.The
provision would have provided agency employees withadditional compensation for time spent commuting from home to a
temporary work site within the employee’s official duty station.The court agreed with the Authority’s conclusion that the provision
conflicted with an OPM government-wide regulation that excludes compensation
for normal home to work travel.The court rejected the
union’s argument that the provision was not in conflict with OPM’s regulation
because the regulation sets only minimum entitlements under the Fair Labor
Standards Act (FLSA) that may be modified by negotiated
agreements.

The Ninth Circuit denied the union’s petition
seeking review of an Authority decision finding nonnegotiable a
proposal providing that transferred employees will continue to receive for 3
years the geographically-based pay differential of the office from which the
employees are transferred where that differential is higher than the
differential of the area to which the employees are
transferred.

The D.C. Circuit granted the union's petition for review, vacated the
Authority's decision and order and remanded the case to the Authority for
further proceedings. The Authority found nonnegotiable the union's
proposal requiring the agency to provide overnight storage of
agency-authorized firearms in a lock box or other secure storage container at
all agency offices where armed employees work or are assigned. The court
agreed with the Authority that the proposal affected management's right to
determine its internal security practices. However, the court found that
the Authority failed to follow its precedent in determining whether the
union's proposal constituted an appropriate arrangement.

The D.C. Circuit granted the union's petition for review, remanded in part
and reversed in part the Authority's decision and order. The union sought
review of an Authority decision finding nonnegotiable, in whole or in part,
proposals requiring the agency to provide overnight storage for employees'
authorized firearms, permitting employees carrying authorized firearms to make
stops between residences and work locations, and expediting resolution of
firearms issues.

The union seeks review of an Authority decision granting agency exceptions
to an arbitrator's award ruling that the agency violated the Statute when it
refused to bargain with the union over certain portions of the union's
leave-swapping proposal.

The union seeks review of an Authority decision denying the union's
exceptions to an arbitrator's award finding that the agency did not violate
the Statute and provisions of the parties' collective bargaining agreement by
refusing to bargain at the local level over the impact and implementation of
changes concerning the length of employees' bridge assignments and regular
days off .

The D.C. Circuit granted the union's petition for review, vacated the
Authority's decision and order dismissing as untimely a ULP complaint, and
remanded the case to the Authority for further proceedings. The
Authority concluded that the agency had an obligation to comply with an
arbitrator award as soon as it became final and because the agency never took
the actions mandated by the award, the time period for filing a ULP charge was
triggered when the award became final. The court, disagreeing with the
Authority, concluded that since the award required the agency to take certain
actions by a particular date, the agency's failure to timely take these
actions triggered the limitation period for filing the charge. The court
reasoned that it was impossible to find that a ULP occurred before that point
because there could not have been a failure to comply with the award before
the agency was required to take some action.

The D.C. Circuit denied, per curiam, the union petition for review
of an Authority decision setting aside an arbitration award. The
arbitrator had found that the agency committed a ULP and a contract violation
by changing a past practice without providing the union an opportunity to
bargain. The court agreed with the Authority that the union had received
adequate notice that the agency was changing its overtime policy.

The D.C. Circuit dismissed the union's petition for review of a decision of
the FLRA General Counsel declining to issue a ULP complaint, on the ground
that the court lacked jurisdiction under section 7123 of the Statute. In its
decision, the D.C. Circuit reaffirmed its ruling in Turgeon v. FLRA,
677 F.2d 937 (D.C. Cir. 1982), where the court flatly declared that
it had no jurisdiction to review decisions by the FLRA General Counsel
declining to issue ULP complaints because such decisions do not constitute
final agency orders under section 7123. To avoid any "lingering confusion,"
the court indicated that the Supreme Court's intervening decision in
Heckler v. Chaney, 470 U.S. 821 (1985), did not change the law of the
D.C. Circuit regarding the nonreviewability of the FLRA General Counsel's
decisions.

The D.C. Circuit dismissed the union's petition for review of an Authority
decision and order finding that the agency committed unfair labor practices by
refusing to bargain over various union-initiated proposals. The union's
petition for review contested only the Authority's statement, in dicta, that
no comprehensive collective bargaining agreement existed between the union and
the agency. The court held that the union was not "aggrieved" within the
meaning of section 7123(a) of the Statute because the Authority's order
provided the union with "all of the substantive relief that was necessary to
address the agency's unlawful refusal to bargain." Accordingly, the
court found the union did not have standing to file a petition for review and
dismissed the case for lack of jurisdiction. 57 FLRA
185 (2001)

The union seeks review of an Authority decision setting aside an
arbitrator's award that found that the agency had violated the parties'
agreement and that directed the agency to attempt, through discussions with
the union, to establish an alternative to a special pay rate increase that had
been requested from, but denied by, OPM.

The D.C. Circuit granted the agency's petition for review and reversed the
Authority's order that an Agency pay post-judgment interest on liquidated
damages awarded employees through arbitration under the Fair Lagood morbor
Standards Act. The Authority had ruled that such interest was permissible
under the Back Pay Act. The D.C. Circuit disagreed, holding that liquidated
damages are not "pay, allowances, or differentials" within the meaning of the
Act.

The D.C. Circuit denied an individual's petition for review of an Authority
decision dismissing unfair labor practice complaints against an agency and a
union. Agreeing with the Authority, the Court held that section 7120(e)
of the Statute does not preclude a union official from serving simultaneously
as an ethics counselor. The individual had claimed that such dual service
created a "conflict of interest" in violation of section
7120(e). The court disagreed, affirmed the Authority's
"objective person" criteria for determining whether a conflict of interest
exists within the meaning of section 7120(e), and denied the
petition.

The Tenth Circuit dismissed the agency’s petition for review of an
unexcepted-to-ALJ decision for lack of subject matter jurisdiction and
enforced the Authority’s order adopting the ALJ decision. The Authority
found a ULP for an agency's failure to provide the union with notice and an
opportunity to represent bargaining unit employees at a formal discussion
concerning the investigation of formal EEO complaints. The agency's exceptions
to the ALJ's recommended decision were rejected as untimely filed.

The D.C. Circuit denied an agency's petition for review of an Authority
decision in a section 7114(b)(4) information case. The Authority had ruled
that the Agency committed a ULP by failing to provide the union with certain
disciplinary records the union had requested in connection with a proposed
removal. The court found that the union was acting as an "exclusive
representative" under the Statute, notwithstanding the fact that the union had
chosen to represent an employee at t